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1973 DIGILAW 295 (CAL)

STATE v. RANADA RANJAN SAHA

1973-12-04

AMAL KRISHNA DE

body1973
AMAL KRISHNA DE, J. ( 1 ) THIS is a reference made by the Sessions Judge, Burdwan under section 438 of the old Code of Civil Procedure. ( 2 ) A charge-sheet under section 420/471 of the Indian Penal Code was submitted against Ranada Ranjan Saha in the Court of Magistrate, Burdwan. The learned Magistrate, after the accused Ranada appeared before him, by his order dated 17. 7. 69, framed against him charges under section 465/471 of the Indian Penal Code observing that there was no material to frame charge under section 420 of the Indian Penal Code. Against that order there was a motion before the Sessions Judge who directed that the learned Magistrate should proceed with the case under Chapter 18 of the old Code. The accused moved this Court in Criminal Revision Case No. 477 of 1970 against the order of the Sessions Judge. This Court, by its order dated 16. 12. 70, refused the prayer for quashing the proceeding against the accused and directed the Magistrate to try the case himself adopting the procedure under section 251a of the old Code on the charges under section 465/471 of the Indian Penal Code as framed by him. Trial commenced before him in accordance with the provisions of that section. Four witnesses on behalf of the prosecution have been examined. On 10. 4. 73 a prayer was made before the learned Magistrate for leave to prove at the trial some documents not mentioned in the charge-sheet. The learned Magistrate granted that prayer by his order dated 10. 4. 73 directing that copies of the said documents should be furnished to the said accused. When the prosecution offered copies of those documents to the accused, he refused to take them and raised an objection to lead evidence in proof of those documents at the trial. The learned Magistrate heard the parties and by his order dated 16. 5. 73 recalled the order dated 10. 4. 73 and directed that the trial should proceed without those documents being proved. It is against that order that the State moved the Sessions Judge giving rise to Criminal Motion No. 56 of 1973. The learned Sessions Judge, considering that motion, has made this reference. He has recommended that the said order dated 16. 5. 73 by which the learned Magistrate recalled his earlier order dated 10. 4. 73, should be set aside. It is against that order that the State moved the Sessions Judge giving rise to Criminal Motion No. 56 of 1973. The learned Sessions Judge, considering that motion, has made this reference. He has recommended that the said order dated 16. 5. 73 by which the learned Magistrate recalled his earlier order dated 10. 4. 73, should be set aside. ( 3 ) THE accused and the State appear before me at the hearing. ( 4 ) THE learned Magistrate has recalled his earlier order dated 10. 4. 73 on the ground that the documents, which are sought to be proved, are not mentioned in the charge-sheet and copies of the same have not been furnished to the accused as required by section 173 (4) of the Code. Section 173 (4) of the Code relates to the procedure to be followed by the investigating police. The provision is that when the police, after investigation, forwards a report they shall, before commencement of the enquiry or the trial, furnish or cause to be furnished to the accused free of cost, a copy of the report forwarded under sub-section (1) and of the first information report recorded under section 154 and of all other documents or relevant extract thereof on which prosecution proposes to rely. If this procedure is not followed by the police the learned Magistrate at the commencement of the trial adopts the procedure laid down in section 251a (1) of the Code. As he proceeds with the trial, the learned Magistrate considers all the documents referred to in section 173 to decide whether or not to frame a charge. If he frames a charge and takes the plea of the accused the trial proceeds to its next stage, which is the stage of taking evidence. Sub-section (7) of section 251 (A) is that on the date so fixed for examination of witnesses the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution. So the procedure to be adopted in the trial is in section 251a. It does not restrict the prosecution to the materials collected during investigation and to the materials copies whereof have been furnished to the accused under section 173. The learned Magistrate was, therefore, wrong in recalling his earlier order dated 10. 4. 73. So the procedure to be adopted in the trial is in section 251a. It does not restrict the prosecution to the materials collected during investigation and to the materials copies whereof have been furnished to the accused under section 173. The learned Magistrate was, therefore, wrong in recalling his earlier order dated 10. 4. 73. ( 5 ) BESIDES, as has been pointed out in the order of this Court in the Criminal Revision Case No. 477 of 1970, the powers of the court to allow evidence, as are required for a fair trial, to be admitted are also under section 540 of the Code. There is further provision in section 165 of the Indian Evidence Act giving the court the power to order production of documents at any stage of the trial. It cannot be, therefore, said that the learned Magistrate's order directing the prosecution to put in documents not mentioned in the charge-sheet to be proved at the trial is on the face of it, bad. The recommendation of the Sessions Judge for setting aside the order of the learned Magistrate dated 16. 5. 73 will, therefore, be accepted. ( 6 ) MR. Bhose appearing for the accused submits that the learned Magistrate while taking evidence in proof of the documents which the prosecution seeks to put in on the strength of the order dated 10. 4. 73 should consider whether admission of such evidence will cause any prejudice to the accused at the trial which has been pending for such a long time. The learned Magistrate will certainly do that as the power of the Court under section 540 of the Code of Criminal Procedure or section 165 of the Indian Evidence Act also require such consideration. When the prosecution will lead evidence to prove those documents, the Court will consider whether the documents are relevant or admissible in evidence and whether admission of that evidence will cause any prejudice to the accused. If any objection as to the relevancy or admissibility is taken by accused when proof of such document will be given the learned Magistrate will consider the same and make appropriate orders in that respect. ( 7 ) FOR these reasons the reference should be accepted. ( 8 ) IN the result, I accept the Reference, set aside the order of the learned Magistrate dated 16. 5. ( 7 ) FOR these reasons the reference should be accepted. ( 8 ) IN the result, I accept the Reference, set aside the order of the learned Magistrate dated 16. 5. 73 refusing the prosecution the opportunity to rely on the documents not mentioned in the charge-sheet and restore the Magistrate's order dated 10. 4. 73 in that respect subject to the observations in this order. Appeal disposed of.